Harisinh Nathusinh Makwana vs State Of Gujarat & 4 Other(S)

Dr. A. P. Thaker, J

The petitioner has preferred this petition under Article 226 and 227 of the Constitution of India against the order dated 21.10.2013 passed by the Deputy Collector as well as an order dated 27.11.2015 passed by the learned SSRD in Revision Application No.MVV/KON/Sabar/14/13.

By the impugned order the Deputy Collector held that the sale deeds executed in favour of the petitioner for the land in question are hit by the Provisions of the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as “the Act”) and directed that the land be restored to its original position and learned SSRD has confirmed the same.

The brief facts as emerges from the records are as under:

3.1. The dispute pertains to the land situated at land bearing survey no. Block No.168/1 of Village-Ambasar, Taluka-Dhansura, admeasuring 0-38-95 Hec.-Are-sq. Mtrs. The said land was originally belonging to one Ramaji Chhaganji Parmar. The land was purchased by one Ramaji C. Parmar by way of sale deed dated 05.07.2003.

3.2. The original owner of the land also sold land at revenue survey no.168/2 in favour of the respondent no.4 sold with portion of land vide sale deed dated 18.03.2004, the sale transactions of both the lands were mutated vide entry no.1615 dated 22.04.2004.

3.3. The petitioner has taken loan by mortgaging the land in question vide entry no.1799-was mutated on 06.06.2007 and there was also similar entry no.2024 for mortgage mutated on 07.08.2010. According to the petitioner he is the owner and occupier of the aforesaid land in question.

3.4. The private respondents has alleged that the sale deed executed in favour of the petitioner are illegal and only half of the land was actually supposed to be sold to the petitioners.

3.5. The petitioner has made an application for amalgamation of the lands in his favour instead of passing an order on that application, the concerned authority issued show cause notice dated 11.07.2013 to the petitioner for violation of the provisions of the Act. According to the petitioner, this notice was issued after 12 years of transactions in his favour before the Deputy Collector and submitted his reply and documents thereof.

3.6. The Deputy Collector vide his order dated 21.10.2013 has passed the impugned order against which he has preferred revision application wherein initially stay was granted and thereafter revision came to be dismissed vide order dated 27.11.2015.

3.7. The petition has been preferred amongst following other grounds. That the provisions of Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 are amended and it is not applicable to the case of the petitioner. That the entries of the registered sale deed of the petitioner were certified by the Competent Authority in the year 2004 and the power has been exercised under the Act after 10 years which ought not to have been exercised by the authority. It is also contended that it ought to have been considered by the authorities that the sellers of the lands in question have no locus to raise objections against the sale which was already executed by the registered sale deed and mutation entries were made in the revenue records. It is also contended that the revenue authorities are not competent to cancel any of the sale deeds. It is also contended that the authorities have failed to take into consideration that the petitioner was in possession of the land in questions since the date of purchase of the land in question and bank had also granted the loan on the basis of mortgage of the land to the bank and at that time, no objection was even taken by any of the authorities. It is also contended that even in the revenue record, there is no entry showing that the lands are fragmented lands. It is contended that the impugned orders are passed in violation of the provisions of Section 9 of the Act. According to the petitioner, the land in question is even otherwise ‘piyat’ land, and therefore, the provisions of the act would not be applicable. On all these grounds the petitioner has prayed to set aside both the orders.

Heard learned advocate Mr.S.P.Majmudar for the petitioner and learned AGP Ms.Dhwani Tripathi for the respondent State and perused the material placed on record. The rest of the respondents though have been served but have chosen not to remain present.

Learned advocate for the petitioner has vehemently submitted the same facts which are narrated hereinabove. He has submitted that the sale transaction has already been mutated in the revenue records and the petitioner has also obtained loan from the Bank by mortgaging the lands in question and at the relevant point of time, no objection was even raised by the anybody including the private respondents. He has also submitted that the land in question is a Piyat Land and therefore, the provisions of the Act would not be applicable. He has also submitted that though the sale transaction was of the year 2003 and 2004, the action has been taken in the year 2014, that too on the application moved by the petitioner for consolidation of both the lands which he has purchased by a registered sale deed. He has submitted that the revenue authorities have completely erred in passing the impugned order, according to him, when the provisions of fragmentation act is not applicable to the land in question, the order passed by the revenue authorities are nothing but an illegal one and the power exercised by the revenue authorities are dehors the legal provisions. He has relied upon the following decisions and has prayed to allow the present petition:

(1) 2011 (1) GLR 279 in case of Labhubhai Valjibhai Gajera V.s Secretary (Appeals), Revenue Dept., Gujarat State.

(2) 2011 (1) GLR 610 in case of Vitthal M.Patel V.s Deputy Collector Kaira.

(3) 2013 (1) GLR 231 in case of Paliben Wd/o Kikubhai Kuvariyabhai Koli Patel Vs. Dy Collector, Valsad.

Per contra, learned AGP Ms.Dhwani Tripathi has vehemently submitted that the order passed by both the revenue authorities are proper one and it does not need to be interfered by this Court. She has also submitted that the petitioner has not produced all the relevant documents before the authorities she has also submitted taht the authority has followed the provisions of contained in the Act and the order passed is proper one, she has prayed to dismiss the petition.

In the case of Labhubhai Valjibhai (Supra), the facts was that the appellant who was alleged to be agriculturist had purchased land admeasuring 2 acres and after execution and registration of the sale deed, the name of appellant was mutated in the revenue records and the same was also duly certified. After three years of such entry, Mamlatdar initiated proceedings by issuing notice after almost three years under the Act and respondent Deputy Collector passed an order holding that the said transaction was contrary to the provisions of the act and the same was challenged before the revisional authority which also resulted against the petitioner. The petitioner filed writ petition before this Court and the learned single judge has rejected the same. The petitioner preferred Letters Patent Appeal wherein the Division Bench of this Court has held that the impugned proceedings and order by the authority were hit by the vice of delay of morethan about three years. It was also observed that there was no any material to suggest that the authorities were not aware of the transaction and accordingly the appeal was allowed.

7.1. The Division Bench has considered the aspect of delay in initiating the proceedings under the Act and it has also observed that there was no allegation of fraud and or suppression of fact by the petitioner therefore, even delay of just three years was held to be inordinate delay and held that the proceedings and orders passed by the authority were hit by the vice of the delay.

In the case of Vitthal M.Patel (Supra), it was also a case under the provisions of the Act and the action was taken after 12 years and there was no explanation regarding such delay. On this sole ground, in view of delay it was held by this Court that such action could be said as after an unreasonable period and the delay would operate as a bar to the authority initiating action for annulment or setting aside on the alleged ground of breach of provisions of the act and ultimately the order of the authority was quashed.

In the case of Paliben Wd/o Kikubhai Kuvariyabhai (Supra) the proceeding was under the Act of 1947 was initiated after a period of 8 years, the same was held to be unreasonable and the order of the authority came to be set aside only on the ground of delay.

Having considered the submissions made on behalf of both the sides coupled with the material placed on record, it reveals that there was sale transaction in relation to the land in question i.e. of revenue survey no. block no.-168/1 of Village-Ambasar, Taluka- Dhansura as well as revenue survey no.168/2 of the same village and both the sale transactions were already mutated in the revenue record way back in the year 2004. It also reveals from the record that the lands in question were also mortgaged with the Bank and loan was also obtained by the petitioner. Thus, the entry made in the revenue record regarding the sale transactions as well as regarding the loan advance taken from the bank mortgaging the land were very well known to the revenue authorities. It appears from the order of the Deputy Collector dated 21.10.2013, that the petitioner has very specifically stated in their reply to the show cause notice issued under the provisions of the Act, that the original land bearing revenue survey no. block no.168 was originally belonging to the Radhaji Chhaganji Parmar and Danaji Chhaganji Parmar. That the disputed land admeasuring 0-38-95 Hec.-Are-sq. Mtrs. was sold by Ramaji Chhaganji Parmar to one Mr.Poonamshankar Joitaram Raval on 27.07.2001 and the same was entered into the revenue record vide entry no.1534 dated 03.09.2001, which was duly certified by the competent authority. It was also averred there, in that Radhaji Chhaganji Parmar has also sold parcel of land of block no.168 to Harisinh Nathusinh Makwana on 27.07.2001 by sale deed and the same was also mutated in the revenue record and certified. The petitioner has also submitted that the ‘well’ has been made in the land bearing survey no.168 and both the lands are being irrigated from it. It has also reflected that they have also obtained loan from the Bank and the same has been also mutated in the revenue record.

On perusal of the impugned order of the Deputy Collector, it appears that though all these facts have been narrated and the point of delay was also raised, learned Deputy Collector, in his order even not referred to or answered the same and straight away passed the order imposing the penalty under the Provisions of the Section 9(1) and Section 9(2) of the Act and passed an order under Section 9(3) for putting the possession of land as was initially it was.

Further, it also appears from the record that the entire action taken by the authority i.e. suo motu action taken by the Deputy Collector has been initiated after almost 10 years. Now, it is a well settled principles of law that the delay in taking action ipso facto may not be sufficient, but the aspect of delay may be considered along with the aspect of the prejudice to be caused and the limitation of the right to the parties and irreversible situation. The fact that the person has continued to enjoy the property by cultivation thereof for a long period of 10 years is one of the relevant aspects. It is also an admitted position that as on the sale transaction, revenue entry was mutated in the revenue record and it was made known to the revenue authority. That entry in the revenue record also remained for more than 10 years. The provisions of the Revenue Laws provide that the revenue record is required to be inspected frequently by the Mamlatdar as well as the Prant Officer as per the Gujarat Land Revenue Rules. Now, admittedly at no point of time, the action was initiated. Further, if the order of the Deputy Collector, is considered, there is no material brought on record showing the reason as to why the action could not be initiated well in time. Further, there is no any allegation of the fraud being committed by the petitioner with the authority. Thus, the factual aspects regarding the period of transaction and the impugned action of the revenue authority are not in dispute and are established, which in turn establish that the impugned proceedings and orders by the authority are hit by the vice of delay of more than 3 years.

In view of the decisions referred to hereinabove, the action of the authority is clearly beyond the period of delay. Therefore, on both the counts i.e. on facts as well as on the delay counts, the impugned orders of the authorities are not sustainable in the eyes of law.

In view of the above discussions, the present petition deserves to be allowed and therefore it is allowed accordingly. The impugned order dated 21.10.2013 passed by the Deputy Collector as well as an order dated 27.11.2015 passed by the learned SSRD in Revision Application No.MVV/KON/Sabar/14/13 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted. No order as to costs.

In view of the order passed in the main matter, civil application does not survive and the same is disposed of accordingly.